Presidential Pocket Vetoes: The Original Paperwork Reduction Act

That is unless you had fifth period civics right after lunch. And your teacher was reading Article I, Section 7 of the Constitution in a boring, sonorous tone. And you were suffering from a Tryptophan-induced food coma from the cafeteria's sodium-preserved mystery meat.

So you just kind of skipped pocket vetoes (to say nothing of the electoral college) and regained consciousness around Article II, Section 2.

"The President shall be Commander in Chief of the Army and Navy..."

And that's when you snapped back to attention.

Dig out your Constitutions. There's a fight brewing between the Obama Administration and Congress over the president's use of a pocket veto.

The White House announced Thursday that the president won't sign a bill that makes it tougher for homeowners to contest foreclosures. But Mr. Obama won't whip out his veto pen and send the measure back to Capitol Hill. In fact, he won't do anything about it all, claiming he's using his "pocket veto" to prevent the legislation from becoming law.

The president's plan to use the pocket veto in this case mystifies many on Capitol Hill. And the dispute cuts to the essence of how a bill becomes a law and the prerogatives afforded the legislative and executive branches of government.

Article I, Section 7 of the Constitution requires the president to sign every bill to make it law. If the president opposes the legislation, the Constitution says "he shall return it, with his Objections to that House in which it shall have originated."

But that same portion of the Constitution indicates that "any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same Shall be Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be Law."

That's a pocket veto.

In other words, if Congress is out of town, the president doesn't have to sign a bill into law. Nor does he have to veto the package and sent it back to Congress. If lawmakers are away, the president can in essence stash the bill in his pocket and walk away. That effectively dispatches the issue into legislative oblivion.

This is the essence of the dispute now brewing between the White House and Capitol Hill.

Congress may SEEM like it's out of session. But it's really not. The House adjourned last week until after the midterm elections. The Senate's truly not back in action until November 15. But every few days, a handful of senators meet in what's called a "pro forma" session. Senate Democrats carved a deal with Republicans to technically keep the Senate running in this fashion through next month. It's an effort to bar Mr. Obama from making recess appointments to the federal bench, his cabinet or to ambassadorships. If Congress is open for business, the president has to send such appointments to the Senate for "advice and consent." But the president can bypass the Senate if senators are adjourned for more than three days.

So the Senate is "here." The House is not. Thus, Congress isn't fully adjourned. So the president would have to just veto the foreclosure bill the old-fashioned way, right?

Apparently not. The White House contends it won't send any paperwork to Congress since it's out of session. And the president will just "pocket veto" the bill.

That's the problem.

The housing foreclosure bill is H.R. 3808. "H.R" doesn't stand for human resources or home run. It refers to the "House of Representatives." That means the bill in question originated in the House. Therefore, if the president uses a traditional veto on this measure, he would have to, as the Constitution says, "return it, with his Objections to that House in which it shall have originated."

If the bill started in the Senate, the White House would direct its veto message to that side of the Capitol.

But, House rules dictate that even when the House is out of session, it has provisions in which to always receive a "normal" veto from the president. The Clerk of the House is always available to receive such vetoes even if the House is not operating.

This issue came up before the Supreme Court in the 1920s and 1930s.

In 1926, Congress approved a bill that granted native Americans the right to sue the government for loss of ancestral territory. President Calvin Coolidge declined to either sign or veto the bill. Congress adjourned for the summer. Thus, the bill died with Coolidge's pocket veto.

Six Indian tribes then filed another suit against the government asserting Coolidge's maneuver was unconstitutional. The High Court eventually ruled against the tribes, 9-0. Justice Edward Terry Sanford penned the decision, asserting that the Founders intended a broad interpretation of "adjournment," which allowed Coolidge to use his pocket veto.

The Supreme Court revisited the pocket veto issue in the 1938 case Wright v. U.S. In Wright, the Court partially overruled its earlier decision. It found that Congress could designate people to receive veto messages when it was not in session. That's what the House does when its Clerk is on call. Thus, a president couldn't use a pocket veto to reject bill during a short recess. He would instead be compelled to issue a traditional veto and dispatch that document to Capitol Hill. But the Court decided that longer adjournments (potentially like the one Congress is operating under now) permits a president to deploy a pocket veto.

In the Wright case, the House remained in session but the Senate was away. And the legislation in that instance originated in the Senate.

So there's ambiguity of what constitutes an adjournment.

Even if the Senate presents the slightest patina that it's in session (like with its pro-forma meetings), senators can conduct no legislative business until mid-November (except in a rare emergencies, like 9-11 or Hurricane Katrina).

So is Congress really adjourned as is required by the Constitution for a pocket veto? Or is it still open for business, even though it's really not?

Here's another issue:

The Constitution says that the president must send veto messages back a bill's institution of origin. The measure President Obama pocket vetoed came from the House. Even though the House has a "duty officer" ready to receive a veto, the House isn't really around. That means there's no way to return the bill to the House. In fact, there is actually a brief ceremony that plays out on the House floor when the institution does receive a veto message. So, the White House might say that it has no other alternative than to use a pocket veto on the measure.

It could be a more nettlesome question if the Senate breathed life into the bill and the Senate remained in session via its brief, pro-forma meetings every few days.

This has happened before. Congress was out for Christmas at the end of 2009. But President Obama used his pocket veto on a defense spending bill. And in January, 2008, House Speaker Nancy Pelosi (D-CA) claimed then-President George W. Bush could not pocket veto a defense authorization bill because only one body of Congress was not meeting.

That bill originated in the House. And while the House was out, the Senate had operationally "gone fishin.'" But senators were conducting brief, pro-forma sessions every few days. So Pelosi argued that Congress was not really adjourned. That meant the pocket veto shouldn't have been available to Mr. Bush and he should have used his traditional veto instead.

So why does it matter whether the president uses a pocket veto or a regular veto?The answer has to due with checks and balances.

Article I, Section 7 of the Constitution provides both the House and Senate the ability to override a veto with a two-thirds vote. The bill becomes law, regardless of the president's objections, if both the House and Senate execute a successful override.

The problem is that Congress must have something to override. By not formally vetoing the bill and then transmitting an official veto message to Capitol Hill, the House and Senate have nothing to work with. Again, the president just puts the legislation in his pocket and walks away.

Which is precisely what happened with President Obama and the foreclosure bill.

Lawmakers passed the Paperwork Reduction Act in 1995. Congress may be awash in paperwork. But it seems that Founders crafted the first paperwork reduction act more than 200 years ago when they scribbled the pocket veto into the Constitution.